Adelman v. Adelman CA2/3

Filed 2/22/24 Adelman v. Adelman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

GARRET ADELMAN et al., B330918

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. 18STLC02914,
v. BV033912)

JEROME ADELMAN,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark E. Windham, Judge. Affirmed.
Tamer Law Corp. and Steven M. Tamer for Plaintiffs and
Appellants.
Law Offices of Raymond Hovsepian and Raymond
Hovsepian for Defendant and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
 Plaintiffs Garret and Justin Adelman appeal from a trial
court order sustaining a demurrer to the first count of their
complaint against defendant Jerome Adelman, as Trustee of the
Delores Adelman Separate Property Trust. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We take the relevant facts from the operative initial
complaint and attached exhibit. (Rufini v. CitiMortgage, Inc.
(2014) 227 Cal.App.4th 299, 302; Hill v. Roll Internat. Corp.
(2011) 195 Cal.App.4th 1295, 1300.)
Plaintiffs lived in a guest house owned by Delores Adelman
from June 2006 to November 2015.1 They paid Delores a total of
$84,300 in rent. Delores passed away in October 2014.
Defendant is the trustee of her estate.
In December 2014, plaintiffs filed a complaint with the Los
Angeles Housing and Community Investment Department
(HCIDLA) requesting an investigation of an illegal eviction. In
January 2015, the HCIDLA issued a letter addressed to Delores
stating the guest house was subject to the Los Angeles Rent
Stabilization Ordinance (RSO) and explaining some of the
ordinance’s procedures and requirements. The letter did not
assert Delores had violated the RSO.
In January 2016, plaintiffs filed suit against Delores, her
estate, and Jerome.2 Plaintiffs’ complaint alleged the defendants
violated Los Angeles Municipal Code section 151.05,

1 For the sake of clarity we refer to some of the parties by
first name only.

2 Only Jerome is a party to this appeal.

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subdivision A, by collecting rent “ ‘without first paying annual
registration fees for their rental units and obtaining a valid
rental unit registration certificate from the HCIDLA.’ ”3 The first
cause of action alleged plaintiffs were entitled to disgorgement of
the $84,300 in rent they had paid during their tenancy, as well as
$252,900 in treble damages. It further alleged these remedies
were available under section 151.05, subdivision A.4
Defendant demurred to the complaint, arguing in part that
the first cause of action failed to state a claim. Citing Lyles v.
Sangadeo-Patel (2014) 225 Cal.App.4th 759 (Lyles), defendant
argued a landlord’s failure to register does not entitle a tenant to
disgorgement of all rent paid or treble damages under the RSO.
The court sustained the demurrer to the first cause of action
without leave to amend. The court later granted summary
judgment of the complaint’s remaining cause of action. This
appeal followed.
DISCUSSION
I. The RSO Does Not Provide for Disgorgement of All
Rent Paid or Treble Damages for Failure to Comply
with Registration Requirements
“ ‘On review from an order sustaining a demurrer, “we
examine the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory,
such facts being assumed true for this purpose. [Citations.]”

3 All undesignated code references are to the Los Angeles
Municipal Code.

4 The complaint included a second cause of action for
violation of section 151.09, subdivision G, seeking relocation fees.
That claim is not at issue in this appeal.

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[Citation.]’ ” (Tucker v. Pacific Bell Mobile Services (2012) 208
Cal.App.4th 201, 210.) “The court does not, however, assume the
truth of contentions, deductions or conclusions of law.” (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Section 151.05, subdivision A provides, in relevant part,
that “no landlord shall demand or accept rent for a rental unit
without first serving a copy of a valid registration or annual
registration renewal statement on the tenant of that rental unit.”
Under section 151.10, subdivision A, any landlord who collects
rent “in excess of the maximum rent . . . shall be liable in a civil
action . . . for damages of three times the amount by which” the
rent exceeds the maximum legal rent.
Plaintiffs contend that Delores’s failure to register the
guest house in violation of section 151.05, subdivision A, entitled
them to the return of all rent paid. They further argue that, due
to the failure to register, the “maximum rent” allowed under
section 151.10, subdivision A was zero, thus they are entitled to
three times the amount of rent they paid.
The arguments plaintiffs make here were considered and
rejected in Lyles. In Lyles, the plaintiff alleged her landlord
failed to serve her with a copy of a valid registration statement
pursuant to section 151.05, subdivision A. (Lyles, supra, 225
Cal.App.4th at p. 763.) As in this case, the plaintiff argued the
landlord’s noncompliance with section 151.05, subdivision A
prohibited the landlord from charging any rent at all. (Id. at
p. 766.) Therefore, the plaintiff argued, the maximum rent
allowed under section 151.10, subdivision A was zero, and she
sought disgorgement of all rent paid and treble damages. (Ibid.)
The trial court sustained a demurrer to the complaint.

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 On appeal, the Lyles court rejected the plaintiff’s
arguments. (Lyles, supra, 225 Cal.App.4th at p. 766.) The court
explained that section 151.05, subdivision A “does not disentitle a
landlord to rent for a period during which the landlord is not in
compliance” with the registration statement requirements.
(Ibid.) “Instead, it concerns the timing of a landlord’s ‘demand’
for or ‘acceptance’ of rent to which the landlord remains entitled.”
(Ibid.) Section 151.11, subdivision B makes this clear as it
“permits a tenant to ‘withhold the payment of any rent otherwise
lawfully due and owing’ if the tenant’s landlord has failed to
comply” with the registration requirements. (Ibid.) “Once such a
noncompliant landlord complies with . . . section 151.05,
subdivision A., however, the tenant becomes obligated to pay the
current rent and any back rent withheld pursuant to . . .
section 151.11, subdivision B. Thus, the tenant is permitted to
withhold rent to which the landlord is otherwise entitled until
the landlord complies with . . . section 151.05, subdivision A., at
which time the tenant must pay the landlord all accrued rent.”
(Id. at pp. 766–767.)
The Lyles court further rejected the plaintiff’s argument for
treble damages. The court explained that “[t]he penalty provision
of . . . section 151.10, subdivision A. applies only when a landlord
‘demands, accepts or retains any payment of rent in excess of the
maximum rent . . . in violation of the provisions of this chapter.’
The maximum rent is that allowed by the rent control provisions
of the [RSO].” (Lyles, supra, 225 Cal.App.4th at p. 767.)
Although the landlord may have violated the ordinance by
accepting the rent while in violation of the registration statement
service requirement, that did not mean the landlord was not
“ultimately entitled” to the rent. (Ibid.) The Lyles court further

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reasoned that allowing tenants to recover all rent paid based on a
landlord’s failure to obtain and serve a registration “would be an
absurd and unreasonable consequence.” (Id. at p. 768.)
We agree with the Lyles court’s reasoning. While
section 151.11, subdivision B allowed plaintiffs to withhold rent
until defendants complied with the registration requirement,
nothing in the RSO authorizes the disgorgement remedy they
seek.5 Further, while the failure to comply with section 151.05,
subdivision A affected the permissible timing of defendants’
acceptance of rent, it did not prohibit the charging of rent
entirely, thereby rendering the maximum rent zero.
Section 151.10, subdivision A’s treble damages remedy does not
apply.
Like the Lyles court, we also reject plaintiffs’ argument
that Carter v. Cohen (2010) 188 Cal.App.4th 1038 (Carter)
suggests a different result. Plaintiffs argue Carter stands for the
proposition that when a landlord violates section 151.05,
subdivision A, “any amount [of rent] collected” exceeds the
maximum rent allowed under the RSO. Plaintiffs misread
Carter. Carter considered only the “narrow” question of whether
the landlord before it was subject to the RSO at all. (Id. at
p. 1046.) Although, as here, the plaintiff in Carter sought

5 Plaintiffs contend Lyles is inapplicable because there the
plaintiff alleged the landlord failed to serve a registration
statement on her, whereas here, plaintiffs allege defendants
failed to register the property at all. We do not find this to be a
meaningful distinction. Whether a landlord fails to procure a
registration statement or fails to serve a copy of a valid
registration statement on a tenant, the remedy available to a
tenant under the RSO is the withholding of rent pursuant to
section 151.11.

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“disgorgement of the entire rent she had paid” and treble
damages, the trial court determined she was not entitled to either
remedy and she did not appeal those rulings. (Id. at p. 1042.)
The reviewing court thus expressly stated it was not addressing
whether the plaintiff could “recover her rent payments in their
entirety” or treble damages, the very arguments plaintiffs raise
in this case. (Id. at pp. 1046, 1042–1043.)
Plaintiffs rely on a footnote in Carter which mentioned the
landlord’s argument that since the RSO defines “maximum rent”
by reference to “legal” rent, the ordinance did not bar landlords
from collecting rent arising from unlawful rental agreements.
(Carter, supra, 188 Cal.App.4th at p. 1051, fn. 7.) In this context,
the court suggested that the RSO’s definition of maximum rent
implied that when there is no legal rent the baseline maximum
rent is $0. However, the court further indicated that the issue
was not before it and it concluded only that the definition of
maximum rent did not exempt the landlord from the RSO’s
prohibition against collecting excess rent. The discussion of a
maximum rent of $0 was therefore dicta and, as the Lyles court
concluded, the Carter court did not reach the issues of
disgorgement of rent or treble damages as a result of a landlord’s
failure to comply with the RSO’s registration requirements.
(Ibid.; Lyles, supra, 225 Cal.App.4th at pp. 767–768.)
Plaintiffs propose no other interpretation of the RSO that
would entitle them to the relief they seek in the first cause of
action. The trial court properly sustained the demurrer.6

6 For the first time in their reply brief, plaintiffs appear to
argue their cause of action under section 151.05, subdivision A
was viable because the lease was void and the building

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II. Plaintiffs Have Not Established that the Trial Court
Abused Its Discretion in Denying Leave to Amend
“If the court sustained the demurrer without leave to
amend, as here, we must decide whether there is a reasonable
possibility the plaintiff could cure the defect with an amendment.
[Citation.] If we find that an amendment could cure the defect,
we conclude that the trial court abused its discretion and we
reverse; if not, no abuse of discretion has occurred.” (Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Plaintiffs have
the “burden of proving there is a reasonable possibility of
amendment.” (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43 (Rakestraw).) “The assertion of an abstract
right to amend does not satisfy this burden.” (Ibid.)
Plaintiffs have not met their burden here. In opposing the
demurrer, plaintiffs did not explain how they could amend the
complaint to remedy its deficiencies.7 Similarly, on appeal,

substandard. They also contend the “reasonable value” of the use
of the premises was less than what they paid in rent. Plaintiffs
fail to connect these arguments to their claim that the defendants
are liable under the RSO for failing to register the guest house.
“Points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present
them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784,
794, fn. 3.) Plaintiffs have not shown such good cause.

7 No reporter’s transcript was included in the record on
appeal, and thus there is no record of what occurred during the
demurrer hearing or the trial court’s reasoning in denying leave
to amend. This deficiency further prevents plaintiffs from
establishing the trial court abused its discretion. (Southern
California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483

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plaintiffs assert that an amendment could “cure any defects that
the court finds.” Yet the only specific amendment plaintiffs
propose would allege “descriptions of the repairs needed and
what made the premises substandard.” These changes would not
remedy the fundamental legal deficiency in plaintiffs’ complaint.
Neither section 151.05, subdivision A nor section 151.10,
subdivision A identifies any remedy for failure to make repairs,
and plaintiffs have not explained how such descriptions could
support a claim for disgorgement of all rent paid.
Plaintiffs have not offered “allegations to support the
possibility of amendment” or “legal authority showing the
viability of new causes of action.” (Rakestraw, supra, 81
Cal.App.4th at p. 44.) We cannot find the trial court abused its
discretion in denying leave to amend.

[appellant’s burden to provide adequate record; reporter’s
transcript indispensable in many cases involving abuse of
discretion standard of review].)

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 DISPOSITION
The judgment is affirmed. Defendant to recover his costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.

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